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 Excerpts of Supreme Court 
Medical Marijuana Arguments


Excerpts from Monday’s 11/29/04  Supreme Court oral argument 
on medical marijuana, as transcribed by Alderson Reporting Co.


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JUSTICE SANDRA DAY O’CONNOR: "As I understand it, if California’s law applies, then none of this homegrown or medical-use marijuana will be on any interstate market. And it is in the area of something traditionally regulated by states."

ACTING SOLICITOR GENERAL PAUL CLEMENT: "Well, Justice O’Connor, let me first say that I think it might be a bit optimistic to think that none of the marijuana that’s produced consistent with California law would be diverted into the national market for marijuana. And, of course, the
Controlled Substances Act is concerned, at almost every step of the act, with a concern about diversion, both of lawful substances from medical to non-medical uses and from controlled substances under Schedule I into the
national market."

CLEMENT: "Any little island of lawful possession of non-contraband marijuana, for example, poses a real challenge to the statutory regime. It would also, I think, frustrate Congress’ goal in promoting health. And I think the clearest example of that is the fact that, to the extent there is
anything beneficial, health-wise, in marijuana, it’s THC, which has been isolated and provided in a pill form."

JUSTICE RUTH BADER GINSBURG: "There is, in this record, a showing that, for at least one of the two plaintiffs, there were some 30-odd drugs taken.None of them worked. This was the only one that would. . If there were to be a prosecution of any of the plaintiffs in this case, would there be any defense?"

CLEMENT: "Well, Justice Ginsburg, I think we would take the position, based on our reading of the (2001) Oakland Cannabis case – and, obviously, different justices on this court read the opinion differently and had different views on the extent to which the medical-necessity defense was
foreclosed by that opinion – I would imagine the federal government, in that case, if it took the unlikely step of bringing the prosecution in the first place, would be arguing that, on the authority of Oakland Cannabis, the medical-necessity defense was not available."

CLEMENT: "There’s something like 400 different chemical components in crude marijuana that one would smoke, and it just sort of belies any logic that all 400 of those would be helpful. … Smoked marijuana doesn’t have much of a future as medicine is, as I think people understand, smoking is
harmful. And that’s true of tobacco, but it’s also true of marijuana. And so the idea that smoked marijuana would be an effective delivery device for medicine, I think, is also something that really doesn’t have any future as

RANDY BARNETT, representing two ill California women: "If you accept the government’s definition of economic, then washing dishes, today, would be economic, and that would be within the power of Congress to reach."

JUSTICE DAVID H. SOUTER: "You say it’s non-economic because one of these people is a self-grower, another one is getting it from a friend for nothing. But I don’t see what reason that you have given, or any reason that you haven’t given, for us to believe that, out of – now I’m going to assume, for the sake of argument, 100,000 potential users – everybody is going to get it from a friend or from plants in the back yard. Seems to me the sensible assumption is they’re going to get it on the street. And once they get it, under California law, it’s not a crime for them to have it and
use it. But they’re going to get it in the street."

BARNETT: "They have a very strong incentive not to get it on the street, because getting it on the street is going to subject them to criminal prosecution, under both California and federal law. … We are talking about a class of people here who are sick people, who don’t necessarily
want to violate the law."

SOUTER: "And if I am a sick person, I’m going to say, `Look, if they’re not prosecuting every kid who buys, what, a nickel bag or whatever you call a small quantity today, they’re not going to prosecute me, either.’ I mean, there’s not going to be any incentive, it seems to me, to avoid the street

JUSTICE STEPHEN BREYER: "You know, he grows heroin, cocaine, tomatoes that are going to have genomes in them that could, at some point, lead to tomato children that will eventually affect Boston. You know, we can – oil that’s
never, in fact, being used, but we want an inventory of it, federally. You know, I can multiply the examples. And you can, too. So you’re going to get around all those examples by saying what?"

BARNETT: "By saying that it’s all going to depend on the regulatory scheme."

JUSTICE ANTONIN SCALIA: "Congress has applied this theory in other contexts. One is the protection of endangered species. Congress has made it unlawful to possess ivory, for example. It doesn’t matter whether you got it lawfully or not. Or eagle feathers, the mere possession of it, whether you got it through interstate commerce or not. And Congress’ reasoning is, We can’t tell whether it came through interstate commerce or not, and to try to prove that is just beyond our ability; and, therefore, it is unlawful to possess it, period.’ Now, are those laws, likewise, unconstitutional, as going beyond Congress’ commerce power?"

BARNETT: "Not if they’re an essential part of a larger regulatory scheme that would be undercut, unless those activities are reached. . This class of activities – because it’s been isolated by the state of California and is policed by the state of California, so that it’s entirely separated from the market."